Order Offers Equal, Not Special, Protection for Gays

Last month, President Bill Clinton amended the executive order governing equal employment opportunity in the federal government by adding the words “sexual orientation” to its list of prohibited bases for discrimination. The federal government thereby joined the ranks of such Fortune 500 companies as IBM, Microsoft, AT&T;, Time Warner and RJR Nabisco in adopting a uniform policy prohibiting anti-gay discrimination in civilian employment.

That the president did the right thing on May 28 is clear. That further action is sorely needed to protect gay, lesbian and bisexual workers in both the public and private sectors is also clear. And that the opponents of gay rights are protesting vociferously such action is all too clear. Evidently preferring fund-raising rhetoric over accuracy, critics have fundamentally misconstrued the letter and intent of amended Executive Order No. 11,478.

THE “SPECIAL RIGHTS” CANARD

House Majority Leader Dick Armey, R-Texas, decried Clinton’s “continuing pursuit of special privileges for one interest group.” Rep. Tom DeLay, R-Texas, echoed Armey’s comments, accusing the president of “trying, once again, to go around the American people to implement his liberal agenda.” In a June 23 speech on the House floor, DeLay invoked the long-discredited “special rights” canard by claiming that the amendment gives “special breaks for special interests.” He also implied that the amendment creates quotas and affirmative action based on sexual orientation. On June 24, DeLay joined Reps. Joel Hefley, R-Colo., Robert Aderholt, R-Ala., and John Hostettler, R-Ind., in circulating a “Dear Colleague” letter soliciting support for the Hefley Amendment to the Treasury/Postal Service appropriations bill. The Hefley Amendment would gut the president’s amendment to Executive Order No. 11,478 by prohibiting the expenditure of funds to implement, administer, or enforce it.

The amended Executive Order No. 11,478 likewise incurred the wrath of the 16-million member Southern Baptist Convention, the president’s own denomination. On June 11, the Southern Baptists passed a resolution calling on President Clinton to rescind the amendment and demanding that Congress nullify it if the president fails to do so.

What the amendment to Executive Order No. 11,478 actually does is to clarify in no uncertain terms that discrimination on the basis of sexual orientation in federal civilian employment is forbidden. This is well within the president’s authority to set employment policy in the federal workplace. Moreover, the argument that the president’s action creates “special privileges,” “quotas,” or “affirmative action” for the benefit of lesbian and gay employees is absurd. The amendment creates special privileges for no one and incorporates neither quotas nor the affirmative action of any kind. Instead, by promoting uniformity among a multitude of already existing federal nondiscrimination policies, the amendment ensures equality and fairness.

BORN IN THE NIXON YEARS

Executive Order No. 11,478 was originally issued by then President Richard Nixon in 1969. Recognizing that the Civil Rights Act of 1964 provided no protection for federal civilian workers, President Nixon issued No. 11,478 to prohibit discrimination in federal employment on the basis of race, color, sex, religion and national origin. The order was later amended to prohibit discrimination on the basis of disability and age as well.

Although President Clinton’s amendment adds “sexual orientation” for the first time in history as the basis for a protected class under a federal executive order, the practical effect of the addition is, admittedly, modest. Federal civil service protections have long been interpreted to provide at least some protection from discrimination to lesbian, gay and bisexual workers.

The Civil Service Reform Act of 1978 states that federal civilian employees “shall not … discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.” 5 U.S.C. Section 2302(b)(10)(1978). In a memorandum to the heads of federal agencies, issued May 12, 1980, the Office of Personnel Management clarified that this prohibition protects gay and lesbian federal employees from discrimination. The OPM stated that “applicants and employees are to be protected against inquiries into, or actions based upon, non-job-related conduct, such as religious, community, or social affiliations, or sexual orientation.”

In 1994, at the urging of Rep. Barney Frank, D-Mass., the OPM reiterated its interpretation of the Civil Service Reform Act. In reaction to this exchange of letters between Frank and then-OPM Director James B. King, the majority of Cabinet agencies over the next few years articulated their anti-discrimination policies and, as important, their grievance procedures.

ADMINISTRATIVE REVIEW

In general, federal employees who allege a violation of Section 2302(b)(10) have several avenues of appeal. If they have suffered a major personnel action (e.g., suspension for more than 14 days, removal or performance-related demotion), they may file either an appeal with the Merit Systems Protection Board or a grievance under an applicable collective bargaining agreement. The review is thereafter available in the U.S. Court of Appeals for the Federal Circuit.

For any other type of personnel action (e.g., minor suspension, reassignment or failure to promote), employees can either use the grievance procedure set forth in an applicable collective bargaining agreement or file a complaint alleging the commission of a “prohibited personnel practice” with the U.S. Office of Special Counsel. That office is empowered to investigate such complaints and may, in its discretion, seek corrective and/or disciplinary action against the individual who committed the prohibited practice.

In 1969, the Washington D.C. Circuit in the landmark case of Norton v. Macy made clear that if an individual’s sexual orientation does not “directly affect the efficient functioning of the civil service” or its “public reputation,” any discrimination against that individual on the basis of sexual orientation is prohibited. 417 F.2d 1161 (D.C. Cir. 1969). But these difficult questions generally remain unanswered today: At what point is the “efficient functioning” of a workplace affected? How can one be sure that the effect was directly caused by an employee’s sexual orientation? How does one judge whether the employment of an openly gay worker affects an agency’s reputation?

The ambiguity of the Macy precedent was most apparent in Singer v. U.S. Civil Service Commission, a 1977 case where the Ninth Circuit applied Macy in affirming the dismissal of a clerk typist from a position in the Seattle office of the Equal Employment Opportunity Commission. 530 F.2d 247 (9th Cir. 1977). The Ninth Circuit held that the EEOC could fire the clerk typist for being gay because of his openness about his Homosexuality, which he “indicated by his dress and demeanor” and active membership in the Seattle Gay Alliance, among other things. Applying Macy, the Ninth Circuit held that the clerk typist’s openness about his sexual orientation affected the “efficiency of the public service” and justified his termination. What the court did not discuss is how open is too open or exactly how openness affects efficiency.

The Supreme Court later vacated Singer prompted by a 1975 change in the civil service rules (later reflected in the Civil Service Reform Act) concerning the presumptive suitability of gay men and lesbians for federal employment. 429 U.S. 1034 (1977). But the vacation of the decision did nothing to resolve the ambiguities within Macy or the civil service rules themselves, particularly how “out” a federal employee can be and yet remain protected from discrimination.

President Clinton’s amendment to Executive Order No. 11,478 in no way modifies the Civil Service Reform Act or any related case law. As a result, it will not provide any direct legal remedies for federal employees like the plaintiff in Singer. By articulating a uniform federal policy on sexual orientation, however, the amendment likely will result in the better implementation of the various agencies’ individual nondiscrimination policies and enforcement mechanisms. This will help victims obtain relief within their own agencies — and thereby not have to resort to the uncertain justice of the courts.

Some commentators have argued that the existence of these agency-by-agency policies covering anti-gay bias renders the inclusion of such protection in Executive Order No. 11,478 superfluous. But the criticism incorrectly supposes that the existing policies were uniform in their adequacy and effectiveness. They were not.

The practice of implementing sexual orientation nondiscrimination policies on an agency-by-agency basis created an uneven patchwork of protection. Some federal agencies — such as the Departments of Justice, Transportation, and Agriculture — developed model policies with detailed and easy-to-understand anti-discrimination statements backed up by clear avenues for redress of grievances. Many other agencies implemented vague or otherwise unclear nondiscrimination policies. Some agencies failed to adopt any sexual orientation nondiscrimination policy at all, and some sub-agencies and offices illegitimately “opted out” of recognizing and honoring their parent agencies’ policies.

In essence, whether a gay federal employee was protected against discrimination depended principally on whether the employee’s own agency had adopted an effective policy with internal enforcement mechanisms. If that particular agency lacked either and the employee did not want to go to court, he or she was out of luck.

THE NEXT STEP

The fact that the amended Executive Order No. 11,478 is a positive development in the struggle for workplace fairness does not, however, make it an adequate substitute for the proposed Employment Non-Discrimination Act. As President Clinton made explicit in his statement announcing the amendment, this action “does not and cannot create any new enforcement rights (such as the ability to proceed with the Equal Employment Opportunity Commission or a direct judicial cause of action). Those rights can be granted only by legislation passed by the Congress, such as the Employment Non-Discrimination Act.”

Unlike victims of race and gender discrimination protected by Title VII of the Civil Rights Act, federal employees who are discriminated against on the basis of sexual orientation cannot pursue their claims before the EEOC, and must still make do with the remedies available under the Civil Service Reform Act — which, as noted, have not been effective in cases of sexual orientation discrimination.

The necessary next step is the Employment Non-Discrimination Act, endorsed by the late Barry Goldwater and sponsored by Sens. Jim Jeffords, R-Vt., and Edward Kennedy, D-Mass., and Reps. Chris Shays, R-Conn. and Barney Frank. Patterned after Title VII, ENDA would prohibit workplace discrimination on the basis of sexual orientation for both private and public employees (including state and local government workers, who remain outside the reach of Executive Order 11,478). ENDA would also provide comprehensive enforcement procedures and significant remedies — again, patterned after those under Title VII.

While federal civilian workers may now depend on Executive Order No. 11,478 for at least some protection, it is still perfectly legal for private employers to discriminate on the basis of sexual orientation in 40 states. A mere 10 states and the District of Columbia have passed statutes prohibiting such discrimination. With President Clinton’s amendment, the federal government has taken an important step toward equal employment opportunity for all. But the “second-class citizen” treatment of lesbian, gay and bisexual Americans will continue until ENDA is the law of the land.

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